|
Chapter 30 of
Oregon Revised Statutes
A Potpourri of Laws
September 2004
Entitled “Actions and suits in particular cases”,
Chapter 30 of ORS is also the home of the peculiar
action. Each series of special purpose statutes
undoubtedly has a history. Unfortunately, digging into the
specific social and political background that spawned the
original passage of the various laws is beyond the scope
of this article. Nonetheless, as you read through Chapter
30, you can tell each law is rooted in someone’s real life
experience, a sympathetic legislator, and a process that
often causes compromises, sometimes obvious from the
statutory structure, even if the reasons can not easily be
ascertained from the text.
ORS Chapter 30 is a mandatory read for every adjuster
and attorney because in one chapter you can find a
wonderfully diverse collection of special interest
statutes, many of which you may be surprised to find
exist. It is the purpose of this article simply to
highlight some of the more important and some of the more
unusual statutes to remind us all that they do exist and
may impact the next general liability case you handle.
Some of the more well known statutes deal with:
wrongful death ORS 30.020 et. seq.; tort actions against
public bodies ORS 30.260 et. seq.; product liability
actions ORS 30.900 et. seq.; and claims arising out of
skiing activities ORS 30.970 et. seq. A careful read of
each of these always reminds me that there’s more there
than I remember. For instance, right above the wrongful
death statute is ORS 30.010 which supplies the statutory
basis a custodial parent has for bringing a claim for a
minor child. ORS 30.020 itself tells you just exactly who
can bring a claim and who can’t for wrongful death,
defines what damages can be sought, spells out the statute
of limitations and how damages should be distributed. ORS
30.075 tells you what happens if the injured person dies
while an action is pending, the effect on the statute of
limitations and, under 30.075(2), allows the court to
award attorney fees for a prevailing party if death occurs
to a plaintiff while an action is pending. ORS 30.100
tells you what happens if a defendant dies while an action
is pending.
The tort actions against a public body statutes begin
with ORS 30.260 defining what constitutes a “public body.”
Besides the state, city, counties, school districts and
other political subdivisions, it also includes, for
instance, under ORS 30.260(4)(e), a private child caring
agency, with certain restrictions, that receives more than
50% of its funding from the state for purposes of
providing residential treatment to children who have been
placed in the care and custody of the state…!
What I find amazing every time I wade through these
statutes is how many of them there are and that they
relate to such divergent things as liability insurance for
students involved in off campus experimental activities
ORS 30.264, the scope of liability of public bodies,
officers, employees and agents involved in a nuclear
accident ORS 30.265, and the liability for medical
treatment at OHSU and other similar facilities ORS 30.267
and 30.268.
ORS 30.270 sets forth the amount of liability, i.e. the
cap for governmental bodies, including $50,000 for
property damage, $100,000 to any claimant as general and
special damages, and $500,000 for any number of claims
arising out of a single accident or occurrence. ORS
30.270(3) has a provision for apportioning that $500,000
if there is more claims than money to go around. ORS
30.275 sets forth how claim notices need to be given, and
when they need to be done.
When public bodies shall indemnify their officers,
employees and agents, is set forth in ORS 30.285. Some of
the other provisions in this section deal with the
liability of the state agency for damages caused by foster
children, ORS 30.297, and the liability of the state to
the foster parents, ORS 30.298. Under ORS 30.302 retired
physicians who volunteer their time are considered agents
of a public body for purposes of the tort limitations ORS
30.302(2), and there are lots more related statutes there.
Products liability civil actions are defined in ORS
30.900 et. seq. and provides for time limitations for the
commencements of actions ORS 30.905, asbestos claims ORS
30.907, breast implants ORS 30.908, and presumptions and
defenses ORS 30.910 and 30.915. ORS 30.920(3) is the
provision that makes the Restatement 2nd of Tort, section
402A comments A to M 1965 applicable to the construction
of the products liability law. ORS 30.927 is an example of
special interest legislation and provides when the
manufacturer of a drug is not to be held liable for
punitive damages.
In addition to these well known statutes, there is a
second tier of slightly less known statutes including
what’s left of the guest passenger statute ORS 30.115, the
equine activities statutes ORS 30.687 through 30.697 and
the ski activity statutes beginning with ORS 30.970.
Ever heard of the guest passenger statute? If not, ask
someone who was adjusting claims prior to 1979. ORS 30.115
dealing with aircraft and watercraft guest passengers,
used to apply to automobiles as well. If one qualifies as
a guest, the only claim against the driver can be for
“gross negligence”. Be careful as most claims on
watercraft on navigable streams are subject to admiralty
law, but if you have a boat case, or have a plane case,
keep in mind that if the statue is applicable, a passenger
who has not paid a “substantial benefit” for the ride will
have to overcome the “gross negligence” standard to
prevail.
ORS 30.687 through 30.697 is an elaborate structure for
defining liability involving “equine activity,” meaning a
case involving “a horse, pony, mule, donkey or hinny.” In
the equine activity statutes there is a public policy
specifically set forth in ORS 30.689(2) stating “that no
person shall be liable for damages sustained by another
solely as a result of risks inherent in equine activity,
insofar as those risks are, or should be, reasonably
obvious, expected or necessary to the person injured.” ORS
30.691 spells out limitations on liability, rather like
the guest passenger statute, and provides liability for
“willful or wonton disregard of the safety of the
participant” and further spells out in ORS 30.693 the
effect of a written release.
ORS 30.970 et. seq. deals with skiing activities and
specifically builds in an assumption of risk defense under
ORS 30.975, even though generally assumption of risk as a
defense was expressly abolished long ago. ORS 30.980
requires a notice somewhat similar to a tort claim notice
against a public body to be filed and served in a specific
way on a ski area operator before a claim for injuries can
be brought. ORS 30.985 specifically sets forth the duties
of skiers and the effect of failure to comply with these
duties.
There is ORS 30.820 which deals with actions against
the seller of a drugged horse. ORS 30.822 deals with
actions for theft of or injury to a search and rescue
animal or therapeutic animal and provides for attorney
fees. ORS 30.825 provides a cause of action for tree
spiking.
ORS 30.860 deals with actions for trade discrimination
including discrimination, boycotts, black listing, etc.
based upon national origin, race or religion. ORS 30.866
deals with actions for the issuance or violation of a
stalking protective order. ORS 30.875 deals with damages
for shoplifting or taking of agricultural produce. ORS
30.876 provides treble damages for interference with
agricultural research. ORS 30.882 provides for liquidated
damages to sports officials subject to offensive physical
contact! ORS 30.890 deals with the liability of food
gleaners, donors and distributors and 30.892 protects good
faith donors of general merchandise to charitable or
non-profit organizations.
ORS 30.655 through 30.665 is an elaborate structure
designed to provide protection and definition of the
exposure of the computer industry for the Y2K problem.
ORS 30.740 provides a right of a gambling loser to
recover double his losses resulting from certain unlawful
gaming. ORS 30.750 deals with the liability of land title
abstractors.
ORS 30.765 deals with the liability of parents for torts
by their children and the effect on foster parents.
There are several statutes beginning at ORS 30.785
dealing with the liability of the construction design
professional resulting from failure of an employer to
comply with safety standards, followed by ORS 30.785,
dealing with the liability of architects, engineers and
inspectors or building evaluators for emergency relief
services, and beginning with ORS 30.722 a whole string of
statutes limiting liability for emergency medical
assistance.
ORS 30.140 limits the ability of contracting parties to
use indemnity agreements, making certain agreements for
indemnity void when the person being indemnified is in
whole or in part responsible for the damage.
ORS 30.135 limits the liability of a person that
“lends, rents, donates use of, makes available for test
drive, or otherwise provides a motor vehicle to another
person unless the person providing the motor vehicle is
“negligent in maintaining the motor vehicle or in
providing the motor vehicle and the injury, death or
damage results from that negligence”. This limited
liability, however, applies “only if the person providing
the motor vehicle is engaged in the business of selling,
renting, leasing or repairing motor vehicles and the motor
vehicle is provided to another person in the course of
that business”. Further, under section three, it applies
only if there is a written agreement. In short, this is a
very specific law written to protect a very small segment
of the population.
ORS 30.178 tries to limit liability when an employer
discloses information about an employee to a new employer
and creates a rebuttable presumption of good faith.
There are limitations on liability for officers,
employees and agents in case of nuclear incident, set
forth in ORS 30.265. There are specific limitations of
liabilities for certain medical treatment at OHSU and
elsewhere, ORS 30.267 and 30.268, limitations of liability
for volunteers transporting disabled and older persons in
ORS 30.475, et seq., and limitations on liabilities for
volunteers assisting or advising in response to the
discharge of hazardous materials, at ORS 30.490, et seq.
ORS 30.930 et. seq., begins a series of statutes
designed to protect farming and forest practices, prevent
local laws from interfering with forest practices,
prohibiting local laws making farm practices a nuisance or
a trespass and provides for immunity from certain private
actions based on farming or forest practices on certain
lands.
These are just some of the particular and peculiar
specific statutes dealing with a wide variety of civil
circumstances. If you are going to handle general
liability claims, chapter 30 is worth reading, at least
once a year. It is not the only chapter containing unusual
laws, but it has by far the most.
If you have particular questions or comments, please
contact this writer at
Rudy@lerlaw.com ©
1999 - 2012 Lachenmeier Enloe Rall & Heinson
|
